Customary marriages - Gumede

22 October 2009

The Legal Resources Centre brought a Constitutional Court challenge to section 7 of the Recognition of Customary Marriages Act 120 of 1998 (the Act), which came into force on 15 November 2000. Section 7 provides that marriages that are concluded after the commencement of the Act are in community of property.

Those concluded prior to the commencement of the Act continue to be governed by customary law.

In the Act, customary law is defined as

'the customs and usages traditionally observed amongst the indigenous African peoples of South Africa and which form part of the culture of those peoples'.

In KwaZuluNatal, customary law has been codified in the KwaZulu Act on the Code of Zulu Law 16 of 1985 (the KwaZulu Act) and the Natal Code of Zulu Proclamation R151 of 1987 (the Natal Code).

Both the KwaZulu Act and Natal Code are still in force by virtue of section 2, schedule 6 of the Constitution, which provides that law that was in force when the new Constitution took effect continues to be in force subject to any amendment or repeal and consistency with the new Constitution.

In terms of section 20 of the KwaZulu Act:

'The family head is the owner of all family property in his home, he has charge, custody and control of the property attaching to the houses of his several wives and may in his discretion use the same for his personal wants and necessities, or for the general family purposes or for the entertainment of visitors. He may use, exchange, loan or otherwise alienate or deal with such property for the benefit of or in the interests of the house to which it attaches, but should he use the property attaching to one of the houses for the benefit or on behalf of any other house in the family home, an obligation rests upon such other house to return the same or its equivalent in value.'

Thus, Mr. Gumede is the owner of all the property acquired during the course of the marriage. Section 22 of the Natal Code provides that the inmates of the family home irrespective of sex or age, shall in respect of all family matters be under the control and owe obedience to the family head.

The applicant, Mrs. Gumede, entered into a customary marriage with Mr. Gumede in 1968 in Durban. The marriage relationship broke down and, in 2003, Mr. Gumede instituted divorce proceedings against his wife in the divorce court in Durban seeking a decree of divorce.

During the course of their marriage, Mr. Gumede had acquired immovable property at Umlazi, where Mrs. Gumede currently resides, and another immovable property in Adams Mission where he resides. He has been a pensioner since 2000. During their marriage Mrs. Gumede was not allowed to work. She performed all the required tasks to maintain and look after their family home for their four children and her husband.

The Umlazi home comprised of furniture to the value of R400 000. Mrs. Gumede had nowhere else to live. The Legal Resources Centre represented her to bring the application before the High Court and the Women's Legal Centre intervened as amicus.

The applicant argued that the matrimonial property regime, which Mrs. Gumede was subject to, is discriminatory on the grounds of race and gender. The Women's Legal Centre made submissions to the court that the arbitrary distinction made between marriages that were entered into before the commencement of the Act, and marriages that were entered into after the commencement of the Act, violated the right to equality and the right to dignity and furthermore, such violation does not bear any legitimate government purpose.

The applicant further argued that the Act discriminates against her and other women in the same position as her in that it makes her husband the sole owner of all property acquired during their marriage. It was also argued that, while the Act recognises the discriminatory consequences of customary law and rectifies the position in respect of customary marriages entered into after the commencement of the Act, it perpetuates the discrimination in respect of customary marriages concluded before the Act. This is inconsistent with the Constitution and therefore invalid. The respondents, however, argued that, in terms of the provision of the Act, proprietary and financial rights and interests on her divorce and that there is no violation of her rights to equality. The Women's Legal Centre argued that section 39(1)(b) of the Constitution requires that a court considers international law when interpreting the Bill of Rights.

There are international instruments which South Africa has ratified that prohibit forms of discrimination against women. One such instrument is the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

South Africa as a state party has a duty to take all the appropriate measures, including legislation, to ensure the full development and advancement of women for purposes of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on the basis of equality with men. The Centre made reference to article 16 in particular, which provides that the state parties shall ensure on a basis of equality of men and women, the same rights and responsibilities during marriage and at its dissolution and the same rights for spouses in respect of ownership and management of property.

The court held that, in its view, the proprietary regime established by the codification of customary law is prima facie discriminatory because only African women are subjected by the law to such consequences. The discrimination is on two of the prohibited grounds listed in section 9(3) of the Constitution, namely race and gender. The court went on to consider whether the discrimination was unfair.

In making a decision, the court held that, the divorce court has indeed the power to order payment of maintenance to the applicant and to order that one party's assets be transferred to the other party. However, this does not resolve the problem because the Divorce Act does not affect the proprietary regime which exists during the subsistence of the customary marriage, and the current statutory provisions create a default situation in which, on divorce, the husband will remain the owner of all property acquired during their marriage unless the wife is able to persuade the divorce court to make an order transferring some of his property to her or a forfeiture of benefits is ordered in her favour. Therefore, the court held that the position of the applicant in this regard is sharply different to that of women who are not black or who entered customary marriages after the commencement of the Act.

Respondents argued that the Act was introduced to remove elements of discrimination in customary law and to provide for the equal status and capacity of spouses in customary marriages. The Act gives expression to two constitutional principles, namely the passing of legislation contemplated in section 15(3) of the Constitution and to give effect to the cultural pluralism that is guaranteed by sections 30 and 31 of the Constitution.

They also argued that the Law Commission had considered it unfair not to draw a distinction between marriages entered into before or after the commencement of the Act, since not to do so may have retrospectively taken away contracted rights, not only of male spouses, but of third parties as well.

The court held the Law Commission's main goal was to ensure equitable distribution of assets on the breakup of marriage. The court held further that the respondents failed to show that any limitation of the right to equality is justifiable under section 36 of the Constitution. The court ordered that section 7(1) of the Recognition of Customary Marriages Act the words

'entered into after the commencement of this Act'

in section 7(2) of the Recognition of Customary Marriages Act, section 20 of the KwaZulu Act on the Code of Zulu Law, section 20 of the Natal Code of Zulu Law and section 22 of the Natal Code of Zulu Law are all inconsistent with the Constitution and invalid.

The Constitutional Court upheld the decision. See Gumede (born Shange) v President of the Republic of South Africa and Others (CCT 50/08 [2008] ZACC 23.

The Office of the Chief Registrar of Deeds, in terms of CRC 4 of 2009, provided guidelines on how this case affects the day-to-day practice of conveyancing. See CRC 4 of 2009